Modernizing Islamic Law in Pakistan: Reform or Reconstruction?

Abstract

73 Journal of South Asian and Middle Eastern Studies Vol. 42, No.2, Winter 2019 Modernizing Islamic Law in Pakistan: Reform or Reconstruction? Muhammad Khalid Masud* Introduction Academic studies stress failure of modernizing Islamic law in Pakistan, generally from the perspective of modernization theory of development. This critique is sometimes specific with reference to particular legislations, but mostly it is general to illustrate the modernization theory. This essay refers to studies by Joseph Schacht,1 N. J. Coulson,2 Abdullahi Ahmad An-Na’im,3 Donald L. Horowitz,4 Wael B. Hallaq,5 Martin Lau6 and Jan Michiel Otto.7 *Muhammad Khalid Masud, M.A. and Ph.D. (McGill), is presently an Ad Hoc judge, Shariat Appellate Bench, Supreme Court of Pakistan. His major publications including both edited and co-edited works are Shatibi’s Philosophy of Islamic Law, Iqbal’s Reconstruction of Ijtihad, Islamic Legal Interpretation, Travelers in Faith, Dispensing Justice in Islam, Nuqushe-e Tagore and forthcoming Freedom of Expression in Islam: Challenging Apostasy and Blasphemy law, coedited by Lena Larsen, Muhammad Khalid Masud, Kari Vogt, Christian Moe (2019). 1 Joseph Schacht, “Problems of Modern Islamic Legislation,” Studia Islamica (1960), 99129 ; and An Introduction to Islamic Law (Oxford: Oxford University Press, 1966). 2 N.J. Coulson, A History of Islamic Law (Edinburg: Edinburgh University Press, 1964); and Conflicts and tensions in Islamic jurisprudence, (Chicago: University of Chicago Press, 1969). 3 Abdullahi Ahmad An-Na’im, Towrads an Islamic Reformation, Civil Rights, Human Rights, and International Law (Syracuse: Syracuse University Press, 1990); Islam and the Secular State, Negotiating the Future of Shari’a (Cambridge: Harvard University Press, 2008). 4 Donald L. Horowitz, “The Quran and the Common law; Islamic Law Reform and the theory of legal change.” The American Journal of Comparative Law (1994), 233-293, 238. 5 Wael Hallaq, Shari’a, Theory, Practice and Transformations (Cambridge: Cambridge University Press, 2009) and The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (New York: Columbia University Press, 2012). 6 Martin Lau,”Shari’a and National Law in Pakistan,” Jan Michiel Otto (Ed.), Sharia Incorporated (Leiden: Leiden University Press, 2010), 373-432, 388; “Twenty-Five Years of Hudood Ordinance- A Review,” Washington and Lee Law Review (2007), 1291-1314. 7 Jan Michiel Otto (Ed.), Sharia Incorporated, A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present (Leiden: Leiden University Press, 2010). 74 Legislation In Pakistan This article first discusses the specific comments by the above-mentioed scholars on modernist legislation in Pakistan, particularly on the Muslim Family Laws Ordinance 1961 and Hudood Ordinance 1979. Since these comments are part of a larger critique of Islamic law from the perspective of modernization theory, they overlook certain important facts, apparently paying more attention to theory than to the local context, and portray Islamic legal tradition as unchanged and unchangeable. This study focuses on the modernization theory as a general critique. The Muslim Family Law Ordinance of 1961: A modernist reformist legislation Schacht found this legislation typically weak on the following points: (1) It did not arise out of a genuine public demand. (2) It was recommended by a Commission, not by the parliament. (3) The majority of the members in the commission were modernists. (4) The minority report opposed almost all of the recommendations. (5) It met with strong opposition by the traditionalists. (6) Modernists in Pakistan rely on Ijtihad for reshaping of Islamic law. Their methods of Ijtihad include reinterpretation and reference to general principles. Pakistani modernists are more conditioned by the traditional system, even if negatively, than the modernists in the Near East.8 It is not possible to analyze all these observations in this short essay; we will only focus on the most relevant comments. Schacht’s criticism is informed by the fact that a tension existed between modernists and traditionalists in Pakistan. However, to say that it was not in response to public demand ignores the context of this legislation. The legislation preceded by protests and street demonstration by All Pakistan Women Association for women’s rights, particularly against the practice of polygamy. A commission was established to formulate recommendations on family laws. The law was passed by an ordinance in the absence...